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Graff v. Graff

OPINION FILED APRIL 12, 1979.

ROSALYN GRAFF, PLAINTIFF-APPELLEE,

v.

ROBERT J. GRAFF, DEFENDANT-APPELLANT. — ROBERT J. GRAFF, PLAINTIFF-APPELLANT,

v.

ROSALYN GRAFF, DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. JEROME C. SLAD and the Hon. RAYMOND K. BERG, Judges, presiding.

MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

On October 15, 1974, Rosalyn Graff (Rosalyn) filed a complaint for divorce against Robert Graff (Robert) on grounds of extreme and repeated mental cruelty. (Ill. Rev. Stat. 1973, ch. 40, par. 1.) After a hearing, the trial judge entered a decree of divorce on August 31, 1976, which awarded Robert's interest in the marital home, owned in joint tenancy, to Rosalyn as alimony in gross. Upon sale, Robert would receive 20% of the net proceeds. It also contained a provision that if Robert failed or refused to transfer his interest to Rosalyn by quitclaim deed within 10 days, an associate judge of the land title division would execute a deed in his stead. Robert filed a notice of appeal on the same date as the entry of the divorce decree.

During the course of the divorce proceedings, Robert filed a separate action in the chancery division, seeking partition of the joint tenancy in the marital home and naming Rosalyn and others as defendants. Rosalyn filed a motion to dismiss the action or alternatively to consolidate it with the divorce proceeding. Subsequent to the entry of the divorce decree, Rosalyn filed a motion to vacate or alternatively to transfer the cause to the divorce division on the grounds that the property in issue had been disposed of by the divorce court. After several continuances and also a change of judge pursuant to a motion by Robert's counsel, the court dismissed the cause for want of prosecution on March 1, 1977. Two days later, Rosalyn filed a motion for summary judgment attaching a deed dated December 3, 1976, and signed by an associate judge, conveying and executing Robert's interest pursuant to the divorce decree. The judge entered an order of dismissal on March 3, 1977, pursuant to Rosalyn's motion. The following day, the judge vacated the earlier dismissal for want of prosecution. On March 7, 1977, Robert moved to vacate the March 1, 1977, dismissal for want of prosecution and to vacate the order of summary judgment entered after the dismissal for want of prosecution. The judge denied these motions and sustained the "order of dismissal heretofore entered on March 1, 1977." Robert filed a notice of appeal on March 11, 1977. The two cases have been consolidated for purposes of this appeal.

Necessary to the disposition of this consolidated appeal is our resolution of the following issues: (1) Whether the trial judge in the divorce proceeding erred in finding Robert guilty of extreme and repeated mental cruelty toward Rosalyn, (2) whether the divorce court incorrectly continued its jurisdiction over the marital home after Robert filed his notice of appeal from that proceeding, and (3) whether the trial judge in the partition proceeding erred in ordering summary judgment in favor of Rosalyn. We affirm as to all three issues.

We first consider whether Rosalyn proved, by a preponderance of the evidence, that Robert was guilty of extreme and repeated mental cruelty. The evidence pertinent to this issue was adduced at trial as follows:

Rosalyn testified from her recollection and from notes that she had been keeping, that during their 20-year marriage, Robert would come home at 2 or 3 a.m. about four or five times a week and say that he had been working or at a meeting. Several times a week over a 15-year period, he would fail to call her or inform her that he would be late for dinner, although occasionally he would tell her where he could be reached. He had embarrassed her about 5 years before by blowing a whistle at a banquet that they had attended in Canada. He had blown the whistle at a wedding as well and on other occasions, but she could not remember the dates. She recalled an incident where he became intoxicated and passed out on their kitchen floor in front of another couple. On two occasions, Robert engaged in shoplifting in front of the children and once he took towels from a hotel in spite of her efforts to put them back.

Rosalyn further testified to various acts of anger or threats by Robert without any provocation on her part. Over 20 years of marriage, he would shout and scream once every week or two. The previous May, she asked him if they could settle without long litigation. He began throwing chairs around, and throwing articles on the floor. He told her he would kill her and her attorney and she called the police. In October, he became angry at his wife after their daughter woke him, and he ran around the house nude. In September, he began screaming after she asked him not to wash the family's clothes. In January and February of 1975, he asked her to lend him money and when she refused, he threatened her that he would see to it that she lost her job. He threatened her with the loss of her job on another occasion as well and told her in front of one of their daughters that they would lose their house and file for bankruptcy. Although it is unclear whether it was then or at another time, Robert told one of their daughters to look up bankruptcy because they were headed for it. She and her daughter walked away and Robert ran after them and accused them of talking behind his back. In February, in front of her daughter and her daughter's friend, he threatened to drag Rosalyn's family into the divorce and to never let her have a divorce. On another occasion he told her that he hoped the proceeding would kill her father and asked her for $25,000. In April of 1974, he said that he would burn the house down before he would let her remain in it.

Several times a week for the duration of the marriage up until a year before the trial, Robert refused to close the door of the bathroom adjacent to their bedroom while he was using it, despite Rosalyn's objections. Rosalyn recalled an incident where their youngest child walked in and her husband became angry. Robert was also careless in his dress and often failed to close his robe or undergarments adequately. She also testified that Robert told her in front of their two younger children that she was crazy. On another occasion, again in front of one of their children, he told her she was lucky he did not force her to "peddle [her] ass for money" and wondered whether she was having sexual relations with men, women and children.

Rosalyn further testified to a number of incidents where her husband was late, causing her to miss a wedding ceremony and to be late for various parties and celebrations. On two occasions, they were entertaining family or friends at home and Robert arrived late and further delayed the meal by attending to various chores while their guests were waiting.

Robert told her in October of 1974 that he never wanted her parents in their house again after he had had an argument with her father. On January 9, 1974, he refused to get dressed when his daughter's friend was coming over to visit. On another occasion, Rosalyn accidentally got oven cleaner in her eye, and Robert persisted in nagging her, while she was in pain, to sue the manufacturer or to ask her father for money.

Rosalyn further testified that Robert paid $240 of their daughter's $3,000 first year college tuition. For several years, Rosalyn had been paying the charge account bills and doctor's bills out of her earnings, although Robert paid for food. Her husband threatened to take in a boarder to defray expenses. After the commencement of the divorce proceedings Robert showed their house to prospective buyers over her objections.

Rosalyn further stated that she observed the Jewish Sabbath for the first 17 years of their marriage at her husband's insistence but had stopped for the past 3 years. Their daughter needed money for college and took a job which required her to work Friday night and Saturday in violation of the Sabbath laws and Robert strenuously objected. The daughter has a nervous stomach and as a result of Robert's objections had been crying and losing sleep and so had Rosalyn.

Rosalyn testified to other effects her husband's behavior has had on her. For the past 2 years, she had been nervous on the job and often close to tears. Her efficiency at work was especially impaired following incidents at home. She was diagnosed 8 months before as being afflicted with Raynaud's disease, which is brought about by mental strain. The symptoms are that her hands become cold, and mottled and discolored in appearance, and her fingernails turn blue. She had been suffering from nervous headaches for 5 years and had been sleeping fitfully for the past 2 years. Her temper had been short with her children and she felt badly about it. Her doctor gave her tranquilizers and advised her to take them when she was overwrought. She and Robert had been sleeping in separate beds in the same bedroom until recently and last had intercourse in August of 1974. They no longer entertained, socialized or ate together.

During cross-examination, Rosalyn testified that their eldest daughter had been awarded a scholarship for the first year of college which covered her tuition but not her housing. Their daughter paid for part of her housing from earnings, savings and gifts. Robert paid Rosalyn $50 a week during 1974 pursuant to a court order and had paid the mortgage and real estate taxes on the house that year. During redirect, she stated that she had been seeing a psychiatric social worker since the fall of 1973. Robert told her that she could have the divorce if she would agree to ...


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